Thursday, August 11, 2011
Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)
For publication opinions today (3):
Westville Correctional Facility, et al. v. George Finney, a 6-page opinion by Sr. Judge Sullivan, involves a petition for review of an administrative agency's decision where:
Judicial review was hampered by severe inadequacies in the record. Due to recording errors during the ALJ’s hearing, most of the witnesses’ testimony was not recorded. As we discuss in more detail below, only the testimony of witnesses Finney and Edwina Robinson are intelligible to any degree. Following a hearing upon Finney’s Petition for Judicial Review, Judge Dreyer granted the Petition, set aside the agency action and “remanded to the agency for further proceedings.” In his order, Judge Dreyer determined:In Shepherd Properties Co. v. International Union of Painters and Allied Trades, District Council 91 , 4-page opinion on a petition for rehearing, Judge Bailey writes:
5. The record is devoid of any testimony of any witness other than Finney.The reviewing court then concluded that Finney met his burden of demonstrating the invalidity of the administrative agency’s action in that the agency action was unsupported by substantial evidence and further, that Finney was prejudiced by the agency action. * * *
6. There is no testimony regarding any of the exhibits.
7. The only evidence related to the ALJ’s findings is only found in Finney’s testimony and from general references in some personnel documents about the 30-day suspension.
We hold that Westville, as the Appellant before this court, has not shown that the reviewing court committed reversible error. To the contrary, it is clear from the record before us that the agency’s action was without evidentiary foundation, let alone substantial evidence as required by Indiana Code section 4-21.5-5-14(d). * * *
The posture of the case at its various levels, including this level, cries out for remedial action with respect to SEAC’s [Indiana State Employees’ Appeals Commission] method of preserving testimonial evidence. * * *
For the reasons stated, we affirm the decision of the Marion Superior Court in granting judicial review and in remanding the matter to SEAC.
According to the Union, this Court sua sponte decided an issue not briefed by the parties and failed to distinguish relevant precedent. We grant rehearing for the limited purpose of expanding upon our discussion of the issue presented on appeal, concerning the propriety of an award of attorney’s fees under the Indiana Access to Public Records Act (“APRA”). * * *Karl Driver v. State of Indiana - "We conclude from the discussion in Collins that LeFevre and Trial Rule 60(B) no longer provide an avenue for relief for a party that can seek relief under Trial Rule 72(E)."
We do not disagree with the Union’s contention, or prior observations from this Court, that APRA does not include language explicitly precluding attorney’s fees from a third party. Conversely, APRA does not include language providing for payment of attorney’s fees by an intervenor, and we will not write into the statute such a provision. This is within the province of our Legislature.
We affirm our original opinion.
NFP civil opinions today (1):
NFP criminal opinions today (1):
Posted by Marcia Oddi on August 11, 2011 01:34 PM
Posted to Ind. App.Ct. Decisions